Nat'l Wildlife Federation v. Sec'y of the U.S. Dep't Trans.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0175p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NATIONAL WILDLIFE FEDERATION, ┐

Plaintiff-Appellee, │

│

│

v. │

> Nos. 19-1609/1610

│

SECRETARY OF THE UNITED STATES DEPARTMENT OF │

TRANSPORTATION; ADMINISTRATOR OF THE PIPELINE │

& HAZARDOUS MATERIALS SAFETY ADMINISTRATION, │

in their official capacities (19-1609), │

Defendants-Appellants, │

│

ENBRIDGE ENERGY, LIMITED PARTNERSHIP (19-1610), │

│

Intervening Defendant-Appellant.

│

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:17-cv-10031—Mark A. Goldsmith, District Judge.

Argued: April 9, 2020

Decided and Filed: June 5, 2020

Before: MERRITT, THAPAR, and LARSEN, Circuit Judges.

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COUNSEL

ARGUED: Jeffrey Bossert Clark, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Federal Appellants. David H. Coburn, STEPTOE & JOHNSON LLP,

Washington, D.C., for Appellant Enbridge. Oday Salim, UNIVERSITY OF MICHIGAN LAW

SCHOOL, Ann Arbor, Michigan, for Appellee. ON BRIEF: Jeffrey Bossert Clark, Avi Kupfer,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellants.

David H. Coburn, Joshua H. Runyan, STEPTOE & JOHNSON LLP, Washington, D.C., Phillip

J. DeRosier, DICKINSON WRIGHT PLLC, Detroit, Michigan, for Appellant Enbridge. Oday

Salim, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellee.

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Kirsten L. Nathanson, CROWELL & MORING LLP, Washington, D.C., Bruce T. Wallace,

HOOPER HATHAWAY, P.C., Ann Arbor, Michigan, Ann Alexander, NATURAL

RESOURCES DEFENSE COUNCIL, San Francisco, California, Lindsay P. Dubin,

DEFENDERS OF WILDLIFE, Washington, D.C., Ross A. Hammersley, OLSON, BZDOK &

HOWARD, P.C., Traverse City, Michigan, for Amici Curiae.

THAPAR, J., delivered the opinion of the court in which LARSEN, J., joined.

MERRITT, J. (pp. 12–15), delivered a separate dissenting opinion.

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OPINION

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THAPAR, Circuit Judge. Discretion and judgment are not the same thing. The question

here is whether an agency has discretion to consider environmental criteria not listed in a statute

simply because the agency exercises some degree of judgment when it considers the statutory

criteria. The district court thought that to be so and ordered the agency to comply with the

Endangered Species Act and National Environmental Policy Act. We see things differently and

reverse.

This case is about an oil pipeline called “Line 5.” For over sixty years, Line 5 has carried

oil across the Great Lakes region. Beginning in northwestern Wisconsin, the pipeline stretches

into the Upper Peninsula of Michigan, takes a right turn at the Straits of Mackinac, and cuts

down through the Lower Peninsula before ending in southwestern Ontario.

The Clean Water Act, as later amended, requires the operators of oil pipelines to submit

response plans that address the risk of a potential oil spill. 33 U.S.C. § 1321(j)(5)(A)(i); 49

C.F.R. § 194.101(a). These plans must satisfy the following six criteria enumerated in the

statute:

(i) be consistent with the requirements of the National Contingency Plan

and Area Contingency Plans;

(ii) identify the qualified individual having full authority to implement

removal actions, and require immediate communications between that individual

and the appropriate Federal official and the persons providing personnel and

equipment pursuant to clause (iii);

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(iii) identify, and ensure by contract or other means approved by the

President the availability of, private personnel and equipment necessary to

remove to the maximum extent practicable a worst case discharge (including a

discharge resulting from fire or explosion), and to mitigate or prevent a

substantial threat of such a discharge;

(iv) describe the training, equipment testing, periodic unannounced drills,

and response actions of persons on the vessel or at the facility, to be carried out

under the plan to ensure the safety of the vessel or facility and to mitigate or

prevent the discharge, or the substantial threat of a discharge;

(v) be updated periodically; and

(vi) be resubmitted for approval of each significant change.

33 U.S.C. § 1321(j)(5)(D). The Act also provides that the administering agency “shall . . .

approve any plan” that satisfies the enumerated criteria. Id. § 1321(j)(5)(E)(iii).

Over the past five years, the operator of Line 5 (Enbridge Energy) has submitted two

different response plans as required by the Clean Water Act. The administering agency (here,

the Pipeline and Hazardous Materials Safety Administration) evaluated these plans, determined

each plan met the enumerated criteria, and thus approved them both.

The National Wildlife Federation then sued, alleging that the agency had violated the

Clean Water Act and various other statutes. As relevant here, the district court found that the

response plans satisfied the enumerated criteria. But the court granted summary judgment to the

Federation on other grounds, holding that the agency had to comply with the Endangered Species

Act and the National Environmental Policy Act before it could approve the plans. We review the

district court’s decision de novo. See Sierra Club v. U.S. Forest Serv., 828 F.3d 402, 407 (6th

Cir. 2016).

Endangered Species Act. The defendants first challenge the district court’s ruling as to

the Endangered Species Act. That Act requires federal agencies to consult with the appropriate

environmental authorities in order to “insure that any [agency] action . . . is not likely to

jeopardize the continued existence of any endangered species or threatened species.” 16 U.S.C.

§ 1536(a)(2). But importantly, the consultation requirement does not apply to all agency actions;

it applies only to “discretionary” ones. 50 C.F.R. § 402.03; Nat’l Ass’n of Home Builders v.

Defs. of Wildlife, 551 U.S. 644, 652, 669 (2007).

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The Supreme Court explained the meaning of the term “discretionary” in Home Builders.

Like this case, that case involved a provision of the Clean Water Act. And like the provision

here, the provision there provided that an agency “shall” take an action—namely, transfer certain

permitting powers to state authorities—if nine enumerated criteria were met. 33 U.S.C.

§ 1342(b); Home Builders, 551 U.S. at 650–51. The Court found that the action was not

“discretionary” because “the statutory language [was] mandatory and the list exclusive.” Home

Builders, 551 U.S. at 661. The statute did “not just set forth minimum requirements for the

transfer of permitting authority; it affirmatively mandate[d] that the transfer ‘shall’ be approved

if the specified criteria are met.” Id. at 663. And in this way, the criteria “operate[d] as a ceiling

as well as a floor.” Id. In short, the consultation requirement did not apply because the action

was something that the agency was “required by statute” to do “once certain specified triggering

events ha[d] occurred.” Id. at 669.

All the same holds true here. The Clean Water Act provides that the agency “shall”

approve any response plan that meets the requirements of the Act. 33 U.S.C. § 1321(j)(5)(E)(iii).

Like in Home Builders, “the statutory language is mandatory.” Home Builders, 551 U.S. at 661.

The Act also enumerates six criteria that response plans must satisfy. 33 U.S.C. § 1321(j)(5)(D).

Again, like in Home Builders, the list is “exclusive” and “operates as a ceiling as well as a floor.”

Home Builders, 551 U.S. at 661, 663. Thus, like in Home Builders, the agency is “required by

statute” to approve the response plan once the “triggering events have occurred.” Id. at 669.

Indeed, even the district court and the Federation have recognized as much. R. 78, Pg. ID 2225

(recognizing that the agency cannot “disapprove a response plan that meets the relevant

criteria”); Appellee Br. at 54 (describing the action as “mandatory” once the relevant criteria

have been met). By all appearances, then, the action here isn’t “discretionary.”

The Federation pushes back on this conclusion in several ways.

The Federation primarily argues that the agency has “discretion” because it exercises

some degree of “judgment” when it evaluates the enumerated criteria. But Home Builders

squarely forecloses this reasoning. Both the plaintiffs and the dissent in that case tried the same

argument, reasoning that the agency action was “discretionary” because it wasn’t “entirely

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mechanical” and involved “some exercise of judgment.” Home Builders, 551 U.S. at 671; see id.

at 691–92 (Stevens, J., dissenting). Yet the majority rejected the “some judgment” theory out of

hand. Id. at 671 (majority opinion).

To be sure, Home Builders didn’t draw a precise line between “discretion” and

“judgment.” But the basic distinction isn’t all that mysterious. Some examples may help to

show the difference. The clearest case of “discretion” is when an agency doesn’t have to act—

for instance, if a statute says “may” rather than “must” or “shall.” See, e.g., Weyerhaeuser Co. v.

U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 371 (2018) (“The use of the word ‘may’ certainly

confers discretion on the [agency].”). Beyond that, some courts have found even mandatory

actions to be “discretionary” under the Endangered Species Act (and related statutes) when the

statutory criteria are so open-ended that they leave the agency significant flexibility on when or

how to act. See, e.g., Sierra Club v. Fed. Energy Regulatory Comm’n, 867 F.3d 1357, 1373

(D.C. Cir. 2017) (“public convenience and necessity”); Fla. Key Deer v. Paulison, 522 F.3d

1133, 1142 (11th Cir. 2008) (“‘otherwise improve’ land management and use”). But on the other

hand, Home Builders makes clear that agency action need not be “entirely mechanical” for the

agency to still be exercising only “judgment,” not “discretion.” Home Builders, 551 U.S. at 671.

Or consider some analogous examples from a more familiar context. Just like agencies,

district courts can have “discretion” because permissive language gives it to them. See, e.g.,

Dorris v. Absher, 179 F.3d 420, 429 (6th Cir. 1999) (applying the general rule that the term

“may” gives the district court “discretion” to act). But district courts can also have “discretion”

because the criteria governing their action (even a mandatory action) are simply too open-ended

to be anything but “discretionary.” Take the Federal Rule on discovery: courts “must” limit

discovery to “the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(iii). That

sounds nondiscretionary until you look at Rule 26(b)(1), which defines the scope of discovery

only in terms of a broad list of open-ended factors courts must “consider[].” It should come as

no surprise then that “the scope of discovery is within the sound discretion of the trial court.”

Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (cleaned up). Yet this

does not mean that any amount of open-endedness makes a decision “discretionary.” District

courts make tough calls on a daily basis. Most motions to dismiss or for summary judgment, for

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example, call on district courts to exercise their judgment and expertise. Cf. Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009) (noting that “whether a complaint states a plausible claim for relief”

calls for “judicial experience and common sense”). But of course, we don’t consider all these

decisions “discretionary.”

As with most legal issues, there may be close cases in which it isn’t entirely clear

whether an action involves “discretion” or only “judgment.” But fortunately, this case isn’t one

of them. In the Clean Water Act, Congress gave the agency specific “instructions” (the

enumerated criteria) and told the agency “to follow the instructions” (“shall . . . approve”).

33 U.S.C. § 1321(j)(5)(D), (E)(iii); WildEarth Guardians v. U.S. Army Corps of Eng’rs, 947

F.3d 635, 640 (10th Cir. 2020). The criteria here are akin to those at issue in Home Builders,

which also required the agency to use some expertise and judgment, but yet did not trigger the

consultation requirement. See Home Builders, 551 U.S. at 671. And Home Builders flatly tells

us that in such cases an agency action isn’t “discretionary” because it’s something the agency is

“required by statute to [do] once certain specified triggering events have occurred.” Id. at 669.

No different here

The Federation next tries to find discretion in various provisions of the Clean Water Act.

For instance, it points to a provision that directs the agency to “require amendments to any plan

that does not meet the requirements of this paragraph.” 33 U.S.C. § 1321(j)(5)(E)(ii). But the

power to “amend” is the power “to put right” or “correct.” The Random House Dictionary of the

English Language 66 (2d ed. 1987); Webster’s Third New International Dictionary 68 (1993).

And the Clean Water Act already provides a clear standard by which to evaluate the

“correctness” of the plans: the criteria enumerated in the statute. So this provision gives the

agency no more discretion than the enumerated criteria themselves. That is to say, none at all.

Nor does it matter that the agency must issue regulations requiring response plans to

address the risk of oil spills “to the maximum extent practicable.” 33 U.S.C. § 1321(j)(5)(A)(i).

The Clean Water Act clearly specifies the information that plans must include. See id.

§ 1321(j)(5)(D). And even the Federation does not argue that the Act’s grant of rulemaking

authority empowers the agency to “engraft[]” additional criteria onto that list. Home Builders,

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551 U.S. at 663. After all, rulemaking authority “is not the power to make law” (at least in the

full sense of that term) but only “the power to adopt regulations to carry into effect the will of

Congress as expressed by the statute.” Manhattan Gen. Equip. Co. v. Comm’r, 297 U.S. 129,

134 (1936) (emphasis added). So again, this provision gives the agency no more discretion than

the enumerated criteria themselves.

The Federation also seeks meaning in two of the enumerated criteria, arguing that they

incorporate environmental concerns that trigger the consultation requirement. But the Supreme

Court considered (and rejected) a nearly identical argument in Home Builders, reasoning that

none of the criteria made the protection of endangered species “an end in itself.” Home Builders,

551 U.S. at 671. The argument fails for the same reason here.

The Federation points to a criterion that requires response plans to ensure the availability

of “private personnel and equipment necessary to remove to the maximum extent practicable”

certain oil spills. 33 U.S.C. § 1321(j)(5)(D)(iii). The Clean Water Act further defines “remove”

and “removal” as the various actions that “may be necessary to prevent, minimize, or mitigate

damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and

public and private property, shorelines, and beaches.” Id. § 1321(a)(8). The Federation seizes

upon the words “fish,” “shellfish,” and “wildlife” and insists that they show that the requirement

implicates environmental concerns. But those words are just a few examples given to show what

the phrase “the public health or welfare” means in the “removal” context. More relevant here,

the “removal” definition simply modifies the type of “personnel” and “equipment” that the

pipeline operator must have. The key provision thus asks whether the operator has the type of

resources necessary to address certain oil spills “to the maximum extent practicable”—a

question of technical and practical limits. See 49 C.F.R. §§ 194.5, 194.115(a). Given all this,

it’s hard to see how the provision treats the protection of endangered species as “an end in itself.”

Home Builders, 551 U.S. at 671.

The Federation also points to a criterion that requires response plans to be “consistent

with the requirements of the National Contingency Plan and Area Contingency Plans.”

33 U.S.C. § 1321(j)(5)(D)(i). These contingency plans—as explained elsewhere in the Clean

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Water Act—are prepared by government officials and describe how public and private entities

should work together to prevent and remedy oil spills. See id. § 1321(d), (j)(4). The Federation

reasons that, because the response plans must be “consistent with” the contingency plans and

because the contingency plans allegedly incorporate environmental concerns, then the response

plans must incorporate such concerns as well. But this extended chain of reasoning doesn’t hold

up.

For one thing, the phrase “consistent with” cannot bear the weight that the Federation

places on it. Response plans are “consistent” with the contingency plans if they “show[] no

noteworthy opposing, conflicting, inharmonious, or contradictory qualities”—in other words, if

the documents put together are “not self-contradictory.” The Random House Dictionary of the

English Language 434; Webster’s Third New International Dictionary 484. Consistency does

not mean exact, point-by-point correspondence. See, e.g., Envtl. Def. Fund, Inc. v. EPA, 82 F.3d

451, 457 (D.C. Cir. 1996) (per curiam); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898–99 (9th

Cir. 1986). So this provision doesn’t require response plans to incorporate every single feature

of the contingency plans—a conclusion that the agency has also reached. See 49 C.F.R.

§ 194.107(b).

In any event, the Federation overstates the relevance of the provision. The organization

points to a single regulation that requires Area Contingency Plans to include an “annex” and says

that the annex should “[d]efine the requirements for evaluating the compatibility between this

annex and non-federal response plans . . . on issues affecting fish and wildlife, their habitat, and

sensitive environments.” 40 C.F.R. § 300.210(c)(4)(i), (ii)(I). And the relevant annex provides

that pipeline operators “must determine the maximum distance at which a worst case oil spill

from their facility could cause injury to fish and wildlife and sensitive environments and develop

a plan for mitigating that discharge’s potential adverse effects.” Fish & Wildlife Annex Region

5, pt. I, § 10.0 (2008). Again, it’s hard to see how a single sentence in an annex based on a

regulation associated with a statutory provision means that the provision, on its own terms, treats

the protection of endangered species “as an end in itself.” Home Builders, 551 U.S. at 671. But

just as importantly, this argument runs up against the principle that Congress doesn’t hide

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regulatory elephants (like the consultation requirement) in mouseholes. Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 468 (2001). And mouseholes don’t get much smaller than this.

As a last resort, the Federation cites the Clean Water Act’s purpose as well as some

snippets of legislative history. But courts don’t consider this type of “extra-textual evidence”

when the statutory text is clear—as it is here. NLRB v. SW Gen., Inc., 137 S. Ct. 929, 942

(2017). So this argument fares no better than the rest.

In sum, the agency did not need to comply with the consultation requirement.

National Environmental Policy Act. The defendants also challenge the district court’s

ruling as to the National Environmental Policy Act. That Act requires federal agencies to

prepare an environmental impact statement for major federal actions that will affect the

environment. 42 U.S.C. § 4332(C). But like the consultation requirement, the impact-statement

requirement does not apply to all major agency actions; it applies only to discretionary ones. See

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 770 (2004); Pac. Legal Found. v. Andrus, 657

F.2d 829, 835–40 (6th Cir. 1981).

Consider the Supreme Court’s decision in Public Citizen. There, the Court held that an

agency need not prepare an impact statement for an action that it “lacks discretion to prevent.”

Pub. Citizen, 541 U.S. at 756. That holding followed from two simple points. First, the National

Environmental Policy Act contains an inherent “rule of reason.” Id. at 767. And “no rule of

reason worthy of that title,” the Court observed, would require an agency to prepare an impact

statement to address “the environmental impact of an action it could not refuse to perform.” Id.

at 767, 769. Second, the Act requires “a reasonably close causal relationship” between the

environmental impact and the agency action—something akin to proximate causation. Id. at 767.

And when an agency lacks discretion, “the legally relevant cause” of the environmental impact,

the Court explained, is not the agency’s action but rather Congress’s decision to limit the

agency’s discretion in the first place. Id. at 769. To sum up, the impact-statement requirement

did not apply because the agency had “no discretion” to act otherwise. Id. at 770; see also Home

Builders, 551 U.S. at 667–68 (describing the “basic principle” of Public Citizen as being “that an

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agency cannot be considered the legal ‘cause’ of an action that it has no statutory

discretion not to take”).

Again, the same holds true here. The Clean Water Act doesn’t allow the agency to reject

a response plan for “any reason under the sun.” Ctr. for Biological Diversity v. U.S. Army Corps

of Eng’rs, 941 F.3d 1288, 1298 (11th Cir. 2019). Rather, the Act requires the agency to approve

any plan that satisfies the enumerated criteria. Like in Public Citizen, it makes little sense to

compel the agency to prepare an impact statement for “an action it [cannot] refuse to perform.”

Pub. Citizen, 541 U.S. at 769. And, like in Public Citizen, “the legally relevant cause” of any

environmental impact isn’t the agency’s approval of the response plan but rather Congress’s

decision to limit the agency’s discretion in the first place. Id. Thus, like in Public Citizen, the

impact-statement requirement does not apply because the agency had “no discretion” to act

otherwise. Id. at 770; see also Andrus, 657 F.2d at 835–36, 838–39 (holding that the impact-

statement requirement did not apply because the statute required the agency to consider five

enumerated factors and the action was “mandatory” rather than “discretionary”).

Nor do the enumerated criteria allow the agency to make free-form environmental

decisions. That certain criteria might have environmental effects doesn’t mean that they allow

the agency to consider the environment as “an end in itself.” Cf. Home Builders, 551 U.S. at

671. And if parties have a problem with the review of a response plan, our court has made clear

that the solution is a challenge to the review decision itself, not a “collateral attack to require an

impact statement.” Andrus, 657 F.2d at 836–37. In fact, the Federation brought such a challenge

in this case, arguing that the response plans didn’t satisfy the enumerated criteria and that the

agency failed to adequately explain its decision. The district court rejected the first argument

and accepted the second. But neither party has appealed those rulings, and the National

Environmental Policy Act doesn’t create a backdoor to litigate the same issues all over again.

The Federation repeats many of the same arguments about the agency’s supposed

“discretion.” But the arguments fail with respect to the National Environmental Policy Act for

the same reasons they fail as to the Endangered Species Act. See Sierra Club v. Babbitt, 65 F.3d

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1502, 1512 (9th Cir. 1995); see also Home Builders, 551 U.S. at 667–68 (analogizing discretion

under the two statutes). The Federation hasn’t given us any reason to think otherwise.

In sum, the agency did not need to prepare an impact statement.

One last point. The only other circuit to address these two issues reached the same result

but through different reasoning. See Alaska Wilderness League v. Jewell, 788 F.3d 1212 (9th

Cir. 2015). That court likewise held that an agency need not comply with the Endangered

Species Act or the National Environmental Policy Act before it approves a response plan. But

the court did so only after it found the Clean Water Act ambiguous and the agency’s

interpretation reasonable. See id. at 1219–26 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984)).

As an initial matter, it seems doubtful that the Chevron framework applies here at all.

Agency interpretations warrant Chevron deference only when they are issued through an action

carrying the “force of law”—such as a regulation or formal adjudication. United States v. Mead

Corp., 533 U.S. 218, 227 (2001); Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 727 (6th

Cir. 2013). And the parties haven’t pointed us to any such interpretation. But in any event,

courts don’t defer when the statutory text is clear. See Arangure v. Whitaker, 911 F.3d 333, 337–

38 (6th Cir. 2018). So deference is beside the point.

***

We reverse the district court’s judgment as to the claims under the Endangered Species

Act and the National Environmental Policy Act and remand for further proceedings consistent

with this opinion.

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DISSENT

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MERRITT, Circuit Judge, dissenting. The record reflects that from 1999 to 2016 there

were at least 269 oil spills or leaks from the defendant, Enbridge Energy, resulting in over three

million gallons spilled. Given the potential for environmental damage that each spill creates, the

question before us, based upon the language of the statutes to be interpreted, is whether we

should take a narrow or broad view of the wildlife and other environmental resources that should

be protected. My colleagues take an extremely narrow view. The district court took a broader

view with which I agree.

This case deals with a set of complicated regulations asking an administrative agency to

take into account and weigh and balance a long list of considerations named in 33 U.S.C.

§ 1321(j)(5)(D) and the definition section. It is unrealistic to think that it can perform its role

without the kind of flexible judgement or guided discretion that we as judges must often use in

weighing similar kinds of issues.

The Endangered Species Act requires federal agencies to consult with environmental

authorities to insure that any agency action “is not likely to jeopardize the continued existence of

any endangered species or threatened species” or destroy or adversely modify the habitat of such

species. 16 U.S.C. § 1536(a)(2). This consultation requirement applies only to “discretionary”

agency actions. 50 C.F.R. § 402.03. When we read the six criteria recited in 33 U.S.C.

§ 1321(j)(5)(D),1 together with the definition section found in § 1321(a), it seems clear that

1The response plan must:

(i) be consistent with the requirements of the National Contingency Plan

and Area Contingency Plans;

(ii) identify the qualified individual having full authority to implement

removal actions, and require immediate communications between that

individual and the appropriate Federal official and the persons

providing personnel and equipment pursuant to clause (iii);

(iii) identify, and ensure by contract or other means approved by the

President the availability of, private personnel and equipment necessary

to remove to the maximum extent practicable a worst case discharge

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Congress intended to give the administrative agency that rules on response plans (here, the

Pipeline and Hazardous Material Safety Administration) significant discretion or latitude in

considering and applying the criteria. Perhaps the most obvious criteria that calls for a broad

view is § 1321(j)(5)(D)(iii):

identify, and ensure by contract or other means approved by the President the

availability of, private personnel and equipment necessary to remove to the

maximum extent practicable a worst case discharge (including a discharge

resulting from fire or explosion), and to mitigate or prevent a substantial threat of

such a discharge.

Id. (emphasis added). The definition section gives the word “remove” a broad definition that

extends the administrative agency’s discretion to include not only the “public health or welfare”

but also “wildlife” and damage to the “public and private property.” This definition section

reads as follows:

“[R]emove” or “removal” refers to containment and removal of the oil or

hazardous substances from the water and shorelines or the taking of such other

action as may be necessary to prevent, minimize, or mitigate damage to the public

health or welfare, including, but not limited to, fish, shellfish, wildlife, and public

and private property, shorelines and beaches[.]

§ 1321(a)(8). In addition, “maximum extent practicable” means “the limits of available

technology and the practical and technical limits on a pipeline operator[.]” 49 C.F.R. § 194.5.

The agency here must therefore decide if response plans provide the means necessary to,

within the confines of available technology and other limitations, “prevent, minimize, or mitigate

damage to the public health or welfare,” which includes environmental concerns. This decision-

(including a discharge resulting from fire or explosion), and to mitigate

or prevent a substantial threat of such a discharge;

(iv) describe the training, equipment testing, periodic unannounced drills,

and response actions of persons on the vessel or at the facility, to be

carried out under the plan to ensure the safety of the vessel or facility

and to mitigate or prevent the discharge, or the substantial threat of a

discharge;

(v) be updated periodically; and

(vi) be resubmitted for approval of each significant change.

§ 1321(D)(i)‒(vi).

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making involves expertise, discretion, and judgment. The agency does not simply check the box

for a “triggering event” like the agency in Home Builders.

In Home Builders, the Court did not require consultation under the Endangered Species

Act in part because doing so would implicitly repeal the Clean Water Act. Nat’l Ass’n of Home

Builders v. Defs. of Wildlife, 551 U.S. 644, 661‒64 (2007). We do not have that problem here, as

Congress enacted the Oil Pollution Act of 1990 after the Endangered Species Act. See Alaska

Wilderness League v. Jewell, 811 F.3d 1111, 1116 (9th Cir. 2015) (explaining that “33 U.S.C.

§ 1321(j)(5) postdates the ESA by seventeen years”) (Gould, J., dissenting). Additionally, the

criteria in Home Builders were specific and finite and operated “as a ceiling as well as a floor.”

Home Builders, 551 U.S. at 663.2 Here, the “maximum extent practicable” requirement is an

amorphous, moving target, subject to change with the development of technology and other

resources used by pipeline operators. Hence the agency’s mandate to periodically review

response plans to ensure that operators use the best available methods at that point in time and

the agency’s ability to force operators to amend the plan if they do not meet that criterion. 33

U.S.C. § 1321(j)(5)(E)(ii), (iv). The agency’s mandate to periodically evaluate and amend

response plans are other examples of the expertise and latitude required by the agency, and is

much different than the agency’s role in Home Builders, which the Court determined was to

check boxes for a series of “triggering events.” Home Builders, 551 U.S. at 669.

The National Environmental Policy Act requires federal agencies to prepare an

environmental impact statement for all “major Federal actions significantly affecting the quality

of the human environment.” 42 U.S.C. § 4332(C)(i). My colleagues rely on Dep’t of Transp. v.

Pub. Citizen, 541 U.S. 752 (2004), to support the position that the agency here did not have to

prepare an environmental impact statement. In Public Citizen, the agency was required to certify

a person as a motor carrier if it found that person willing and able to comply with safety and

financial responsibility requirements established by the Department of Transportation. See 49

U.S.C. § 13902(a)(1)(A); Pub. Citizen, 541 U.S. at 766. The agency was not statutorily

authorized to consider environmental concerns. Thus, the Court found that the environmental

2The criteria at issue in Home Builders can be found at 33 U.S.C. § 1342(b)(1)-(9).

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impact statement would serve no purpose because the agency “lack[ed] the power to act on

whatever information might be contained in the [statement]” and therefore the agency action

would not have a “reasonably close causal relationship” to negative environmental

consequences. Pub. Citizen, 541 U.S. at 767‒68. The Court held that the agency need not have

complied with the environmental impact statement requirement because it did not have the

discretion to prevent the certifying of motor carriers based on environmental concerns, given “its

limited statutory authority[.]” Id. at 770.

The bulk of the agency’s work here is to determine if the pipeline operator has the

necessary means to prevent, minimize, or mitigate environmental damage from a potential worst

case discharge. The agency’s approval of a response plan would therefore provide what was

lacking in Public Citizen—a “reasonably close causal relationship between the agency action and

environmental effects, including a worst case discharge, stemming from a potential spill.”

Alaska Wilderness, 811 F.3d at 1117 (Gould, J., dissenting) (internal quotation marks and

citations omitted). Public Citizen does not control this issue but gives further reason why the

agency is required to prepare an environmental impact statement.

Thus, in my view, Congress did not want the administrative agency to be captured by the

oil pipeline business by rote consideration of only a narrowly defined checklist, but rather

required a discretionary judgement by the administrative agency to ensure that a response plan

gives protection “to the maximum extent practicable” to our manifold environmental resources.

I would therefore affirm the district court’s grant of summary judgment.